Use of Deadly Force - When?

There’s a story in the news today (1/12/2013) about two citizens in Houston who observed a man being robbed at gunpoint by a miscreant who fled the scene but he did not physically harm the victim.

The good Samaritans gave chase, exchanged gunfire with the criminal and wounded him. The bad guy then jumped over a fence whereupon a dog attacked him and held him at bay until the police arrived. (It just wasn’t his day apparently).

The story only identifies the two men who went after the bad guy as “strangers” leaving the reader to assume their identity is unknown - at least right now.

This story reminded me about when you can and cannot use deadly force. I’m hopeful that these two guys are never identified because if they are, depending on what kind of day the local district attorney is having, they could be in a whole lot of trouble.

The deadly force statutes in even the most permissive of states say something like the following:

“….in the event that an individual, or a person under protection of the individual, is in immediate danger of loss of life or immediate danger of grave bodily injury, it shall be an affirmative defense that the use of deadly force by the individual is justified.”

To that (in some states) is added that the individual must attempt to flee (disengage) unless that action would place the individual or the person under protection of the individual in even greater danger.

And somewhere in the statutes it will say something like “…once the threat has ended, the affirmative defense has also ended”.

Note that the statute speaks of 'Affirmative Defense', not the 'Right' to use Deadly Force. There is a world of difference.

Anyway, in the case of the two good guys who popped the crook, what they did was illegal because they were in no danger of immediate loss of life or grave bodily injury and, since the crook fled the scene without harming the victim, the victim wasn’t either. (Still, I hope that if a LEO discovers their identity he has the good sense to ‘misplace the paperwork’.)

There are always other things mentioned in the statutes like the individual must be legally able to possess a firearm, must have a right to be where the event took place, must have done nothing to cause or inflame the situation and so on.

And then there is the “reasonable person” test. This is the one that district attorneys love. In his opening remarks (if you find yourself charged) he will ask the jury to determine if they think a “reasonable person”, in possession of the facts that you had, would have done what you did. Now, you had about 6/10th of a second to decide if you have to pull the trigger but the D.A. has months to second guess you as he prepares his case and the jury has hours, days or weeks to do the same thing.

Add to that the probability that a jury made up of 12 liberals from the Upper East Side are going to have a different vision of what is reasonable than 12 jurors in rural Alabama and you can see that nothing is cut and dried when you use Deadly Force - even when you do everything right.

Meanwhile, your life savings are disappearing at a rapid rate to pay for your attorney.

The point of this post is to remind that the use of deadly force is almost always going to result in lengthy meetings with people in authority and when your adrenalin is pumping is not the time to give the LEO a statement. (A LEO who discharges his weapon in the line of duty is normally advised to not give a formal statement for 24-48 hours after the incident and to speak to an FOP or PBA attorney before he does so. Private Citizens should do the same thing although their attorney cost is going to come out of their pocket.)

Please post your own thoughts on the subject and if you have first hand knowledge of the aftermath of using deadly force, please share it will us.

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Big Dawg No. 1431
Carolina Glocker No. 1431
"Freedom is a system based on courage" (Charles Peguy)
"Know where the attack against you is likely to come, whether on the street or in court, and have a proven counter already in place" (Mas Ayoob)

Here is Texas Penal Code 9.32, Deadly Force in Defense of Person. Don't see anything allowing for pursuit (which is not to say there isn't something somewhere else.):

9.32:

(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

TEXAS CODE CHAP. 14
Art. 14.01. [212] [259] [247] OFFENSE WITHIN VIEW. (a) A
peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

Sounds like the 2 Good Samaritans witnessed a felony and tried to arrest the miscreant which is permissible under Texas law.

Actually, the real learning lesson from this incident is to not stick around after shooting a bad guy.

Here is Texas Penal Code 9.32, Deadly Force in Defense of Person. Don't see anything allowing for pursuit (which is not to say there isn't something...)

I know that tone doesn't carry on the boards. So I assure you that I mean this as nicely as possible:

Aside from the fact that the cite supporting pursuit of felons was provided by another, your quote above shows that you really don't understand how things work, and for some reason are adopting an attitude that is distinctly un-American.

Here, as opposed to portions of Europe, the default is liberty. The citizen is not required to find a statute where the state allows his act before proceeding. Rather, he may proceed as he sees fit in his life until the state prohibits an action.

It is not on us (in this case and for an example) to show where the citizen has been allowed to pursue a known felon. It's on you to show that such an action is specifically prohibited.

So again, I ask: in what state is a citizen prohibited from chasing a known felon? Certainally not TX, where this occurred, and I'll wager not in your state either.

Know your law and stop inventing things to worry about.

__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle

Aside from the fact that the cite supporting pursuit of felons was provided by another, your quote above shows that you really don't understand how things work, and for some reason are adopting an attitude that is distinctly un-American.

Where I live, when you train for a CCDW, state prosecutors specifically tell the applicant via videotape that when using deadly force, the instant the threat is ended, so to does the ability to use deadly force. This comes from statutes regulating the use of deadly force which are made a part of the CCDW training by reference but are not part of the actual CCDW laws. In other words, they apply to any citizen, not just CCDW holders.

My post did not say that you weren't allowed to pursue a criminal nor did I say a person could not make a citizen's arrest. Please do not say that I made comments that I didn't make. I posted about the use of Deadly Force - when you can use it and when you can't. I used the Houston incident in that reference, not to start a discussion of when you can pursue a fleeing felon.

As for me being UN-American, how exactly am I supposed to take that if not as an insult?

We all have a right to defend ourselves in all states but we do not have a "right" to use deadly force once the threat has ended. Even shooting a person trying to kill you is a homicide which means literally killing another. Self Defense use of Deadly Force is an Affirmative Defense that can be used to counter a charge of murder or manslaughter. That is all it is.

The guys in Texas were employing deadly force once the threat had ended. They certainly were entitled to pursue but not to employ deadly force where there was no longer a threat.

As for me "making things up to be concerned about", I wonder what George Zimmerman would have to say about that?

__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle

So an average CCW holder should now be chasing suspects down AFTER the crime/threat is over? Stepping away from OP's original story, what if what you know you saw is not really what happened? I see that happen all the time. Then you could find yourself chasing and shooting at a GG because you thought you saw them as the perp. It is not always a question of can or can't but should or shouldn't. Just you legally do something does not always make it a smart decision. If you want to be a cop go get hired and sworn in.

Grand jury also has a very low standard for indictment, so even if you are 100% in the right, you could also find yourself paying to prove it. Best to know the area you are in, down to the particular county since things can change from county to county.

So an average CCW holder should now be chasing suspects down AFTER the crime/threat is over?

The OP was framed entirely in legalities. Tactics is a whole nother question.

__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle

Grand jury also has a very low standard for indictment, so even if you are 100% in the right, you could also find yourself paying to prove it. Best to know the area you are in, down to the particular county since things can change from county to county.

I've lived in or adjacent to Harris County my entire life, and have been in the Criminal Justice system (on the right side of the grey bars) for a portion of it. My previous statement stands, whether or not these guys SHOULD have pursued the criminal. They'll sooner get a key to the city than a grand jury indictment. There's an overall dim view of violent criminals around here.

I am not going to pursue or capture anyone, period. I am not going to "exchage gunfire" with someone trying to flee from me. I will use deadly force when my failure to use it will likely get me killed or grieviously maimed

__________________
"I believe that the right of the citizen to keep and bear arms must not be infringed if liberty in America is to survive." - Ronald Reagan

I am not going to pursue or capture anyone, period. I am not going to "exchage gunfire" with someone trying to flee from me. I will use deadly force when my failure to use it will likely get me killed or grieviously maimed

I am not going to pursue or capture anyone, period. I am not going to "exchage gunfire" with someone trying to flee from me. I will use deadly force when my failure to use it will likely get me killed or grieviously maimed

Except that the guys in the scenario didn't use deadly force absent a threat. The very fact that there was an "exchange" of gunfire shows that.

Show me a case where two guys shot a running robber who threw down his gun and we'll talk. *Your* case has two citizens being fired on by a known felon. I'm doubting that even your prosecutors would have a problem with self-defense in that situation.

__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle

Except that the guys in the scenario didn't use deadly force absent a threat. The very fact that there was an "exchange" of gunfire shows that.

Show me a case where two guys shot a running robber who threw down his gun and we'll talk. *Your* case has two citizens being fired on by a known felon. I'm doubting that even your prosecutors would have a problem with self-defense in that situation.

Nope wrong again. The two citizens fired first, the robber returned fire.

Looks like one continous act to me - armed robber, running down the street, gun in hand. Sounds like a deadly threat.

Heck, even the German Shepherd dog knew what to do.

The dog is my hero, WT. He is the only one that the DA won't go after (but the dog catcher might :=).

I guess I will stop responding. Somehow this got off into a thread on an isolated incident in Houston. (And again, I hope those guys are never found and if an LEO discovers their identity I hope he loses the paperwork. I would.)

Before I go however, once again all I was trying to do is talk about how once the lawyers get involved, you had better have done each and every thing that the permissible use of deadly force requires and I went over them as they apply in virtually all the states.

Everything else that happened on this thread belongs in a post about permissible law enforcement by private citizens.

Nope wrong again. The two citizens fired first, the robber returned fire.

You might have said so. What else have you left out?

__________________
"To spit on your hands and lower the pike; to stand fast over the body of Leonidas the King; to be rear guard at Kunu-Ri; to stand and be still to the Birkenhead Drill; these are not rational acts. They are often merely necessary." Pournelle